Previously I noted that because of the changing nature of warfare and the digital revolution, the United States is rapidly moving toward a National Surveillance State. Whichever party is in power will work toward the creation of such a state, the only difference is how they will negotiate the risks to civil liberties and the concentration of power in the Executive.

The National Surveillance State poses two distinct dangers. The first is that the executive's power to conduct war will displace the area previously assumed to fall within the criminal justice system. Hence the Executive increasingly has the choice to treat dangers within the United States as matters of war and national security rather than as matters of crime and criminal justice. The latter, but not the former, come with a series of traditional civil liberties protections that constrain and check the Executive. If the government can create a parallel law enforcement structure that routes around the traditional criminal justice system, and which is not subject to the oversight and restrictions of the criminal justice system, it may be increasingly tempted to make use of that parallel system for more and more things. It may argue that the criminal justice system is insufficiently flexible and outmoded for the types of problems it faces. However, the more that it routes around the criminal justice system, the more it institutionalizes the parallel system as the method of choice for the government to pursue.

For example, by going outside of FISA and telecommunications privacy laws, the government ensures that the information gleaned from monitoring phone calls and data mining phone records cannot be used to justify traditional judge-issued warrants, and the evidence produced cannot be introduced in ordinary criminal trials. Similarly, evidence derived from coercive interrogations or interrogations involving cruel, inhuman and degrading treatment cannot be introduced in criminal trials. This means that if the government attempts to use the criminal justice system after having used the parallel system it is put at a significant disadvantage in its ability to prove its case. Faced with this disadvantage, it may choose increasingly to expand and defend the parallel system of intelligence, interdiction, incarceration, interrogation, and punishment.

The Padilla case is an interesting example. My suspicion is that the government tried as long as it could to keep Padilla out of the criminal justice system in part because much of the evidence it had against Padilla was probably illegally obtained from the perspective of the criminal justice system; for example, it may have been elicited through coercive interrogation of or cruel, inhuman and degrading treatment of persons held by the CIA or other intelligence operations. A second example is the recent revelations of NSA interception of domestic to overseas telephone calls. One of the justifications offered for the legality of the program is that going outside FISA (and other laws) is not by itself illegal, but merely means that the information elicited cannot be used in criminal trials, but can be used in the government's military operations. That justification shows how parallel tracks are produced and reinforced over time. The more that the government depends on NSA-style domestic surveillance, the more it will want to expand the parallel track of enforcement to make use of the information it derives.

As the laws of war encroach on the criminal law, and the needs of national security encroach on domestic criminal law enforcement, the government will be increasingly tempted to take the path of least resistance-- and least accountability-- and choose to treat individuals within the United States as subject to intelligence, interdiction, incarceration, interrogation, and punishment under the aegis of national security rather than criminal procedure.

The second danger of the National Surveillance State is not that the criminal justice system will increasingly be displaced by a parallel track of military and national security enforcement, but that the criminal justice system will become increasingly like the parallel track, that is, that it will lose the civil liberties protections, checks and balances, and oversight by independent actors (e.g., judges) that we normally associate with the criminal process in the United States. Take the FISA example once again. Right now the government may be arguing that going outside FISA means that evidence can't be introduced at criminal trials. If so, then why not simply ask Congress to amend FISA so that the NSA's searches are legal and the evidence can be admitted in criminal trials? (This has, in fact, been suggested as a solution to the problem of illegality). After all, the Supreme Court has given Congress a fairly wide berth to determine how to draw the boundaries of foreign intelligence. A second example is the increasing use of preventive detention, indefinite detention of material witnesses, administrative warrants and National Security Letters. These strategies modify the previous understandings of the criminal justice system and allow the executive to detain and engage in surveillance without the usual civil liberties limitations, checks, and oversight.

A third example drives from the NSA's data mining program. Although the NSA is currently using its datamining operations to locate threats to national security, there is no reason in theory why the same technologies can't be harnessed to aid domestic criminal law enforcement. Once the databases of all phone calls made in the United States are compiled, and combined with consumer data derived from private organizations like ChoicePoint (to take only one well known example), one can produce rich digital dossiers (to use Dan Solove's term) that could be used either by the nation's national security agencies or its criminal law enforcement arm. The information that is useful to one will increasingly be useful to the other. Knowing this, the government will use it for more and more features of everyday law enforcement. As William Arkin wrote recently in his Washington Post column, "tomorrow, there could be an illegal immigrant tax and pay record monitoring tip-off system, a sexual predator and pornography attention algorithm, a drug dealing and buying behavior inconsistency profile." That is to say, if the information gleaned from the government's national security wing is transferred over to its law enforcement wing (and shared with state and local law enforcement authorities) criminal law enforcement will be transformed into increasing surveillance of ordinary Americans to prevent not only the most serious threats to national security, but also everyday crimes, including even misdemeanors and administrative infractions. The government will be tempted to move increasingly from investigation and arrest after crimes occur to surveillance, prevention and interception before crimes occur. After all, if we can keep our citizens safe from Al Qaeda using the most advanced information technologies, which become increasingly inexpensive to use and implement, why not use the same technologies to protect our citizens from crimes, whether major or minor. And if we use the surveillance state to prevent threats to national security from coming to fruition, why not use the same technologies to head off criminals, both dangerous and petty, before they have a chance to act?

The twin dangers of national security displacing the criminal justice system and the criminal justice becoming increasingly like the national security system are consequences of technological change. Although the National Surveillance State arises from the changing nature of war, changes in technology do not stop with the problem of war, as least as traditionally conceived. Rather, the very same changes in technology threaten to transform the ways that democratic governments interact with their citizenry. That is why the debate over the NSA program is so incredibly important. We need to have a national debate on how we will implement a system of information gathering and processing that is quickly becoming the norm and not the exception. If we do not have this debate, the system will be implemented so as to displace the civil liberties and rights of citizenship we hold dear.

If only Kurt Vonnegut would come out of retirement and update his futuristic novel "Player Piano" (early 1960s) to incorporate terrorism and the mandatory installation of a permanent Lojack type device in every man, woman and child in the US, including visitors, permitting the government to track everyone's activities at all times. That might keep most of us honest. But what about those in government monitoring the system? (Tom Cruise can star in the movie.)

Don’t count on the legislative branch to intercede, not with the present majority:

“A front-page article in this morning's The Hill reports that Sen. Specter has finally made enough concessions to secure the support of the more right-wing members of the Judiciary Committee for his legislation that (along with a bill from Sen. DeWine) would render legal the NSA warrantless eavesdropping program. As part of this negotiation, what were these Bush allies (Hatch, Sessions, Cornyn, Kyl) holding out for? The removal from Sen. Specter's bill of a clause that would mandate that the FISA court rule on the legality and constitutionality of the NSA program. As usual, the thing which Bush supporters fear most - and which they most desperately seek to avoid - is a judicial ruling on the legality of the administration's behavior. […]”

Thank you for hashing out these points, very helpful for us non-lawyers who are out here trying to get over our outrage long enough to come up with additional ways to explain the the dangers behind the encroaching surveillance state to others. The point about the inadmissability of evidence has been said before, but you've done a service by raising the possibility of a drift towards a second track of legality here that we should all be wary of. Thanks.

If only Kurt Vonnegut would come out of retirement and update his futuristic novel "Player Piano" (early 1960s) to incorporate terrorism and the mandatory installation of a permanent Lojack type device in every man, woman and child in the US, including visitors, permitting the government to track everyone's activities at all times.

It's called a "cell phone". Networks are updating location-tracking technology more and more, and the accuracy is getting pretty good (and is mandated by the gummint to meet increased accuracy specs [not to mention CALEA accessability for law enforcement purposes] in the near future).

I'm still not sure why the march toward the national security state is as inexorable as your postings seem to suggest. Has anyone bothered to see whether there were similar transformations of government in other states after experiencing terrorism? Also, given the current political climate, how much longer can we really expect a substantial portion of the public to tolerate that we are moving toward becoming the East German enemy that the GOP would have us believe Ronald Reagan handily defeated along with the U.S.S.R.?

JB: I think at least two of your points were aired in argument in Hamdan before the Supreme Court recently, and the SG was very alert to the peril if the military commissions are part of the final opinion SCOTUS will write. The second point, and perhaps the more widely felt on the bench then was the discussion of habeas as one of the earliest principles in common law and our law.I appreciate your dispassionate examination of the effects our system has when one branch attempts to build a parallel sphere of action.I am glad of the foresight of the founders in supplying the executive with instantaneous effectiveness. In a way, it is natural, given that design of the balance of power, that the executive will be the first to commit extralegal excesses. Though I worry greatly about the cloture supermajoritarian rule; and, even not so much for cloture's sake though I have grown to revere its utility, but rather because if the executive succeeds in that degree of jawboning of Congress on the cloture rules change dispute, in a way Congress at that juncture will have crossed a line into acquiescing to the 'war' powers arguments justifying the surveillance state; and if the executive impells this to that kind of resolution with timing which preceeds publication of the Hamdan opinion, the third branch will face some sobering choices on whether to third track justice, as well, joining the other two branches in accepting the 'war surveillance-state' paradigm as the most verisimilar depiction of our recent condition and our plan for where we would like to take our civil law context in the near term. I think it is reversible, even if it occurs; at its basis it will be a test of our institutions' resilience.

Not much of a jump from Dissenter to Enemy Combatant. As power begets more power, I remember that little Sandra Bullock movie "The Web" where her identity was stolen by the "bad guys" and replaced ... and of course, this will happen in real life because it will simply be too tempting without the soon to be extinct checks and balances.